HOUSE AMENDED
PRIOR PRINTER'S NOS. 672, 1061, 1524 PRINTER'S NO. 1578
No. 640 Session of 1997
INTRODUCED BY GREENLEAF, JUBELIRER, O'PAKE, LEMMOND, WAGNER,
HELFRICK, MURPHY, SALVATORE, TOMLINSON, ULIANA, WHITE, HART,
KASUNIC AND PUNT, MARCH 7, 1997
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JANUARY 20, 1998
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, FURTHER PROVIDING FOR <--
3 SUBPOENA OF MEDICAL RECORDS; PROVIDING FOR A LIMIT ON CHARGES
4 FOR REPRODUCING MEDICAL CHARTS OR RECORDS; FURTHER PROVIDING
5 FOR RIGHTS OF PATIENTS, FOR OBTAINING PERSONAL APPEARANCE OF
6 CUSTODIAN OF ORIGINAL CHARTS AND FOR OBTAINING PRODUCTION OF
7 ORIGINAL MEDICAL RECORDS; providing for prisoner litigation,
8 for limitation on remedies, for prospective relief, for time
9 limits on settlements and, for payment of damages, FOR <--
10 EXEMPTION FROM ATTACHMENT OF RETIREMENT FUNDS AND ACCOUNTS
11 AND FOR CONTENTS OF PRESENTENCE REPORTS.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Title 42 of the Pennsylvania Consolidated <--
15 Statutes is amended by adding a chapter to read:
16 SECTION 1. SECTION 6152(A) AND (C) OF TITLE 42 OF THE <--
17 PENNSYLVANIA CONSOLIDATED STATUTES ARE AMENDED TO READ:
18 § 6152. SUBPOENA OF RECORDS.
19 (A) ELECTION.--
20 (1) WHEN A SUBPOENA DUCES TECUM IS SERVED UPON ANY
21 HEALTH CARE PROVIDER OR AN EMPLOYEE OF ANY HEALTH CARE
1 FACILITY LICENSED UNDER THE LAWS OF THIS COMMONWEALTH,
2 REQUIRING THE PRODUCTION OF ANY MEDICAL CHARTS OR RECORDS AT
3 ANY ACTION OR PROCEEDING, IT SHALL BE DEEMED A SUFFICIENT
4 RESPONSE TO THE SUBPOENA IF THE HEALTH CARE PROVIDER OR
5 HEALTH CARE FACILITY NOTIFIES THE ATTORNEY FOR THE PARTY
6 CAUSING SERVICE OF THE SUBPOENA, WITHIN THREE DAYS OF RECEIPT
7 OF THE SUBPOENA, OF THE HEALTH CARE PROVIDER'S OR FACILITY'S
8 ELECTION TO PROCEED UNDER THIS SUBCHAPTER AND OF THE
9 ESTIMATED ACTUAL AND REASONABLE EXPENSES OF REPRODUCING THE
10 CHARTS OR RECORDS. HOWEVER, WHEN MEDICAL CHARTS OR RECORDS
11 ARE REQUESTED BY A DISTRICT ATTORNEY OR BY AN INDEPENDENT OR
12 EXECUTIVE AGENCY OF THE COMMONWEALTH, NOTICE PURSUANT TO THIS
13 SECTION SHALL NOT BE DEEMED A SUFFICIENT RESPONSE TO THE
14 SUBPOENA DUCES TECUM.
15 (2) (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II), THE
16 HEALTH CARE PROVIDER OR FACILITY OR A DESIGNATED AGENT
17 SHALL BE ENTITLED TO RECEIVE PAYMENT OF SUCH EXPENSES
18 BEFORE PRODUCING THE CHARTS OR RECORDS. THE PAYMENT SHALL
19 NOT EXCEED $15 FOR SEARCHING FOR AND RETRIEVING THE
20 RECORDS; $1 PER PAGE FOR PAPER COPIES FOR THE FIRST 20
21 PAGES; 75¢ PER PAGE FOR PAGES 21 THROUGH 60; AND 25¢ PER
22 PAGE FOR PAGES 61 AND THEREAFTER; $1.50 PER PAGE FOR
23 COPIES FROM MICROFILM; PLUS THE ACTUAL COST OF POSTAGE,
24 SHIPPING OR DELIVERY. NO OTHER CHARGES FOR THE RETRIEVAL,
25 COPYING AND SHIPPING OR DELIVERY OF MEDICAL RECORDS OTHER
26 THAN THOSE SET FORTH IN THIS PARAGRAPH SHALL BE PERMITTED
27 WITHOUT PRIOR APPROVAL OF THE PARTY REQUESTING THE
28 COPYING OF THE MEDICAL RECORDS. THE AMOUNTS WHICH MAY BE
29 CHARGED SHALL BE ADJUSTED ANNUALLY BEGINNING ON JANUARY
30 1, 2000, BY THE SECRETARY OF HEALTH OF THE COMMONWEALTH
19970S0640B1578 - 2 -
1 BASED ON THE MOST RECENT CHANGES IN THE CONSUMER PRICE
2 INDEX REPORTED ANNUALLY BY THE BUREAU OF LABOR STATISTICS
3 OF THE UNITED STATES DEPARTMENT OF LABOR.
4 (II) PAYMENT TO A HEALTH CARE PROVIDER OR FACILITY
5 FOR SEARCHING FOR, RETRIEVING AND REPRODUCING MEDICAL
6 CHARTS OR RECORDS REQUESTED BY A DISTRICT ATTORNEY SHALL
7 NOT EXCEED $15, SEARCH AND RETRIEVAL FEE, PLUS THE ACTUAL
8 COST OF POSTAGE, SHIPPING OR DELIVERY AS DESCRIBED IN
9 SUBPARAGRAPH (I), AS ADJUSTED BY THE SECRETARY OF HEALTH
10 OF THE COMMONWEALTH, UNLESS OTHERWISE AGREED TO BY THE
11 DISTRICT ATTORNEY.
12 (3) NO INDEPENDENT OR EXECUTIVE AGENCY OF THE
13 COMMONWEALTH SHALL BE REQUIRED TO PAY ANY SEARCH OR RETRIEVAL
14 FEE, COPYING COST OR OTHER COST RELATED TO MEDICAL CHARTS OR
15 RECORDS UNDER THIS SECTION UNLESS OTHERWISE REQUIRED BY LAW,
16 REGULATION OR AGREED TO BY THE AGENCY IN GUIDELINES,
17 STATEMENTS OF POLICY OR BY PUBLICATION OF NOTICE IN THE
18 PENNSYLVANIA BULLETIN.
19 * * *
20 (C) DELIVERY OF RECORDS.--FOLLOWING THIS ELECTION, THE
21 HEALTH CARE PROVIDER OR FACILITY SHALL HOLD THE ORIGINALS
22 AVAILABLE, AND, UPON PAYMENT OF ITS [ESTIMATED REPRODUCTION]
23 EXPENSES BY THE PARTY CAUSING SERVICE OF THE SUBPOENA, OR BY ANY
24 OTHER PARTY, SHALL WITHIN [TEN] 30 DAYS DELIVER, BY FIRST CLASS
25 MAIL, CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL
26 DELIVERY, LEGIBLE AND DURABLE COPIES, CERTIFIED BY THE HEALTH
27 CARE PROVIDER OR FACILITY OF ALL MEDICAL CHARTS OR RECORDS
28 SPECIFIED IN THE SUBPOENA. HOWEVER, A DISTRICT ATTORNEY SHALL
29 NOT BE REQUIRED TO PAY FOR COPIES OF MEDICAL CHARTS OR RECORDS
30 BEFORE RECEIPT AND THE CHARTS OR RECORDS SHALL BE DELIVERED ON
19970S0640B1578 - 3 -
1 OR BEFORE THE DATE SPECIFIED ON THE SUBPOENA DUCES TECUM.
2 * * *
3 SECTION 2. TITLE 42 IS AMENDED BY ADDING A SECTION TO READ:
4 § 6152.1. LIMIT ON CHARGES.
5 (A) CHARGES.--
6 (1) NOTWITHSTANDING THE PROVISIONS OF SECTION 6152(C)
7 (RELATING TO SUBPOENA OF RECORDS), A HEALTH CARE PROVIDER OR
8 FACILITY SHALL NOT CHARGE MORE THAN A FLAT FEE OF $19 FOR THE
9 EXPENSE OF REPRODUCING MEDICAL CHARTS OR RECORDS, PLUS THE
10 ACTUAL COST OF POSTAGE, SHIPPING OR DELIVERY, IF THE CHARTS
11 OR RECORDS ARE REQUESTED FOR THE PURPOSE OF SUPPORTING A
12 CLAIM OR APPEAL UNDER ANY PROVISION OF THE SOCIAL SECURITY
13 ACT (49 STAT. 620, 42 U.S.C. § 301 ET SEQ.) OR ANY FEDERAL OR
14 STATE FINANCIAL NEEDS-BASED BENEFIT PROGRAM. THE FEE PROVIDED
15 FOR IN THIS SUBSECTION SHALL BE ADJUSTED ANNUALLY BY THE
16 SECRETARY OF HEALTH OF THE COMMONWEALTH, AS PROVIDED FOR IN
17 SECTION 6152(A)(2)(I).
18 (2) NO INDEPENDENT OR EXECUTIVE AGENCY OF THE
19 COMMONWEALTH SHALL BE REQUIRED TO PAY ANY SEARCH OR RETRIEVAL
20 FEE, COPYING COST OR OTHER COST RELATED TO MEDICAL CHARTS OR
21 RECORDS UNDER THIS SECTION UNLESS OTHERWISE REQUIRED BY LAW,
22 REGULATION OR AGREED TO BY THE AGENCY IN GUIDELINES,
23 STATEMENTS OF POLICY OR BY PUBLICATION OF NOTICE IN THE
24 PENNSYLVANIA BULLETIN.
25 (B) DOCUMENTATION.--THE PERSON MAKING THE REQUEST SHALL
26 PROVIDE THE HEALTH CARE PROVIDER OR FACILITY WITH CLEAR AND
27 CONVINCING DOCUMENTATION THAT THE PURPOSE OF THE REQUEST IS TO
28 OBTAIN MEDICAL CHARTS OR RECORDS NECESSARY TO SUPPORT A CLAIM OR
29 APPEAL UNDER ANY PROVISION OF THE SOCIAL SECURITY ACT OR ANY
30 FEDERAL OR STATE FINANCIAL NEEDS-BASED BENEFIT PROGRAM.
19970S0640B1578 - 4 -
1 (C) REQUEST.--FOR PURPOSES OF THIS SECTION, A REQUEST FOR
2 MEDICAL CHARTS OR RECORDS SHALL INCLUDE, BUT NOT BE LIMITED TO,
3 A SUBPOENA FOR MEDICAL CHARTS OR RECORDS UNDER SECTION 6152 OR A
4 LETTER FROM A PERSON'S ATTORNEY OF RECORD FOR WHOM AN
5 APPOINTMENT OF REPRESENTATIVE FORM (SSA-1696-U4) HAS BEEN
6 EXECUTED, INDICATING THE NEED FOR SUCH CHARTS OR RECORDS.
7 SECTION 3. SECTIONS 6155(B), 6158 AND 6159 OF TITLE 42 ARE
8 AMENDED TO READ:
9 § 6155. RIGHTS OF PATIENTS.
10 * * *
11 (B) RIGHTS TO RECORDS GENERALLY.--
12 (1) A PATIENT OR HIS DESIGNEE, INCLUDING HIS ATTORNEY,
13 SHALL HAVE THE RIGHT OF ACCESS TO [ALL OF] HIS MEDICAL CHARTS
14 AND RECORDS AND TO [PHOTOCOPY] OBTAIN PHOTOCOPIES OF THE
15 SAME, WITHOUT THE USE OF A SUBPOENA DUCES TECUM, FOR HIS OWN
16 USE. A HEALTH CARE PROVIDER OR FACILITY SHALL NOT CHARGE A
17 PATIENT OR HIS DESIGNEE, INCLUDING HIS ATTORNEY, A FEE IN
18 EXCESS OF THE AMOUNTS SET FORTH IN SECTION 6152(A)(2)(I)
19 (RELATING TO SUBPOENA OF RECORDS).
20 (2) NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED AS
21 REQUIRING AN INSURER TO PAY FOR MEDICAL RECORDS REQUIRED TO
22 VALIDATE MEDICAL SERVICES FOR WHICH REIMBURSEMENT IS SOUGHT
23 UNDER AN INSURANCE CONTRACT, EXCEPT AS PROVIDED IN:
24 (I) THE ACT OF JUNE 2, 1915 (P.L.736, NO.338), KNOWN
25 AS THE WORKERS' COMPENSATION ACT AND THE REGULATIONS
26 PROMULGATED THEREUNDER;
27 (II) 75 PA.C.S. CH. 17 (RELATING TO FINANCIAL
28 RESPONSIBILITY) AND THE REGULATIONS PROMULGATED
29 THEREUNDER; OR
30 (III) A CONTRACT BETWEEN AN INSURER AND ANY OTHER
19970S0640B1578 - 5 -
1 PARTY.
2 § 6158. OBTAINING PERSONAL ATTENDANCE OF CUSTODIAN.
3 THE PERSONAL ATTENDANCE OF THE CUSTODIAN OF THE ORIGINAL
4 CHARTS OR RECORDS SPECIFIED IN THE SUBPOENA SHALL ONLY BE
5 REQUIRED IF THE SUBPOENA DUCES TECUM SO SPECIFIES[.] FOR THE
6 PURPOSE OF OBTAINING THE CUSTODIAN'S TESTIMONY ON AN ISSUE IN
7 DISPUTE AND UPON PAYMENT OF THE ACTUAL AND REASONABLE EXPENSES
8 OF THE CUSTODIAN'S PERSONAL ATTENDANCE. WHEN THE PERSONAL
9 ATTENDANCE OF THE CUSTODIAN IS REQUESTED BY A DISTRICT ATTORNEY
10 OR AN INDEPENDENT OR EXECUTIVE AGENCY OF THE COMMONWEALTH, THE
11 FEE PAID TO THE CUSTODIAN SHALL NOT EXCEED THE ORDINARY FEE PAID
12 TO WITNESSES IN CRIMINAL CASES AS SPECIFIED IN SECTION 5903
13 (RELATING TO COMPENSATION AND EXPENSES OF WITNESSES) AND SHALL
14 BE PAID AFTER THE CUSTODIAN'S APPEARANCE.
15 § 6159. OBTAINING PRODUCTION OF ORIGINAL RECORD.
16 THE PRODUCTION OF THE ORIGINAL RECORD SHALL ONLY BE REQUIRED
17 IF THE SUBPOENA DUCES TECUM SO SPECIFIES[.] FOR THE PURPOSE OF
18 COMPARING THE REPRODUCED RECORD TO THE ORIGINAL, OR FOR THE
19 PURPOSE OF RESOLVING AN ISSUE IN DISPUTE, AND SHALL BE DELIVERED
20 WITHIN 30 DAYS OF RECEIPT OF THE REQUEST; EXCEPT WHEN THE
21 ORIGINAL RECORD IS REQUESTED BY A DISTRICT ATTORNEY OR AN
22 INDEPENDENT OR EXECUTIVE AGENCY OF THE COMMONWEALTH, THE RECORDS
23 SHALL BE DELIVERED ON THE DATE SET FORTH IN THE SUBPOENA DUCES
24 TECUM.
25 SECTION 4. TITLE 42 IS AMENDED BY ADDING A SECTION TO READ: <--
26 § 6160. DEFINITIONS.
27 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
28 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
29 CONTEXT CLEARLY INDICATES OTHERWISE:
30 "INSURER." A FOREIGN OR DOMESTIC INSURANCE COMPANY,
19970S0640B1578 - 6 -
1 ASSOCIATION OR EXCHANGE HOLDING A CERTIFICATE OF AUTHORITY UNDER
2 THE ACT OF MAY 17, 1921 (P.L.682, NO.284), KNOWN AS THE
3 INSURANCE COMPANY LAW OF 1921, A HEALTH MAINTENANCE ORGANIZATION
4 HOLDING A CERTIFICATE OF AUTHORITY UNDER THE ACT OF DECEMBER 29,
5 1972 (P.L.1701, NO.364), KNOWN AS THE HEALTH MAINTENANCE
6 ORGANIZATION ACT, A HOSPITAL PLAN ORGANIZATION HOLDING A
7 CERTIFICATE OF AUTHORITY UNDER 40 PA.C.S. CH. 61 (RELATING TO
8 HOSPITAL PLAN CORPORATIONS), A PROFESSIONAL HEALTH SERVICES PLAN
9 CORPORATION HOLDING A CERTIFICATE OF AUTHORITY UNDER 40 PA.C.S.
10 CH. 63 (RELATING TO PROFESSIONAL HEALTH SERVICES PLAN
11 CORPORATIONS), A FRATERNAL BENEFIT SOCIETY HOLDING A CERTIFICATE
12 OF AUTHORITY UNDER THE ACT OF DECEMBER 14, 1992 (P.L.835,
13 NO.134), KNOWN AS THE FRATERNAL BENEFIT SOCIETIES CODE, OR A
14 RISK-ASSUMING PREFERRED PROVIDER ORGANIZATION OPERATING PURSUANT
15 TO SECTION 630 OF THE INSURANCE COMPANY LAW OF 1921.
16 SECTION 4 5. TITLE 42 IS AMENDED BY ADDING A CHAPTER TO <--
17 READ:
18 CHAPTER 66
19 PRISONER LITIGATION
20 Sec.
21 6601. Definitions.
22 6602. Prisoner filing fees.
23 6603. Limitations on remedies.
24 6604. Prospective relief.
25 6605. Types of prospective relief.
26 6606. Termination or modification of prospective relief.
27 6607. Time limits on settlements.
28 6608. Payment of damage award or settlement.
29 § 6601. Definitions.
30 The following words and phrases when used in this chapter
19970S0640B1578 - 7 -
1 shall have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "Consent decree." Relief entered or approved by the court
4 that is based in whole or in part upon the consent or
5 acquiescence of the parties. The term does not include a private
6 settlement agreement.
7 "Frivolous." Lacking an arguable basis either in law or in
8 fact.
9 "Government party." The Commonwealth or a political
10 subdivision and any person elected or appointed to any office
11 of, or hired, employed or contracted by, the Commonwealth or a
12 political subdivision when acting within the scope of those
13 duties.
14 "Prison." A State, county or other facility which
15 incarcerates or officially detains persons accused of, convicted
16 of or sentenced for violations of criminal law or the terms or
17 conditions of parole, probation, pretrial release or a
18 diversionary program.
19 "Prison conditions litigation." A civil proceeding arising
20 in whole or in part under Pennsylvania FEDERAL OR STATE law with <--
21 respect to the conditions of confinement or the effects of
22 actions by a government party on the life of an individual
23 confined in prison. The term includes an appeal. The term does
24 not include criminal proceedings or habeas corpus proceedings
25 challenging the fact or duration of confinement in prison.
26 "Prisoner." A person subject to incarceration, detention or
27 admission to prison.
28 "Prisoner release order." An order, including a temporary
29 restraining order or preliminary injunction, which has the
30 purpose or effect of reducing or limiting the prison population
19970S0640B1578 - 8 -
1 or which directs the release of prisoners from or nonadmission
2 of prisoners to a prison.
3 "Private settlement agreement." An agreement entered into
4 among parties to an action which is not subject to judicial
5 enforcement other than reinstatement of the civil proceeding
6 which the agreement settled.
7 "Prospective relief." All relief other than compensatory
8 monetary damages.
9 "Relief." Relief in any form which may be granted or
10 approved by a court. The term includes a consent decree. The
11 term does not include a private settlement agreement.
12 "Special master." A person appointed to assist the court in
13 prison conditions litigation or to perform functions comparable
14 to those performed by a special master in Federal court pursuant
15 to Fed. Rules Civ. Proc. Rule 53 (relating to masters) or 18
16 U.S.C. § 3626 (relating to appropriate remedies with respect to
17 prison crowding). The term includes persons performing such
18 functions regardless of the title given by the court.
19 "Violation of Pennsylvania law." A violation of the
20 Constitution of Pennsylvania or a Pennsylvania statute. The term
21 does not include the violation of a regulation, consent decree
22 or a court order unless such violation also independently
23 establishes a violation of the Constitution of Pennsylvania or a
24 Pennsylvania statute.
25 § 6602. Prisoner filing fees.
26 (a) Prisoner filing requirements.--
27 (1) A prisoner seeking to bring prison conditions
28 litigation without the prepayment of fees or security due to
29 indigency must submit a request to the court to proceed
30 without the prepayment of fees. The request must include a
19970S0640B1578 - 9 -
1 certified copy of the prisoner's prison account statement,
2 which shall be provided by the prison, for the six-month
3 period immediately preceding the filing of the complaint or
4 notice of appeal. The request shall include a statement of
5 any other assets of the prisoner.
6 (2) The court shall deny in forma pauperis status to any
7 prisoner where:
8 (i) the request is not accompanied by a certified
9 copy as provided in paragraph (1);
10 (ii) the average monthly deposits or average highest
11 monthly balance for the six-month period preceding the
12 filing of the action exceeds the amount of the filing
13 fee; or
14 (iii) other grounds exist for the denial of in forma
15 pauperis status pursuant to the Pennsylvania Rules of
16 Civil Procedure.
17 (b) Partial filing fees.--
18 (1) The court may grant in forma pauperis status to
19 excuse the prisoner from paying the full filing fee prior to
20 the initiation of the action or appeal. Where in forma
21 pauperis status is granted, the court shall order the
22 prisoner to pay the full amount of the filing fee and shall
23 assess and, when funds exist, collect a full or partial
24 payment of the filing fee which shall be the greater of the
25 following:
26 (i) The average monthly deposits to the prisoner's
27 account.
28 (ii) The average highest monthly balance in the
29 prisoner's account for the six-month period immediately
30 preceding the filing of the complaint or notice of appeal
19970S0640B1578 - 10 -
1 requiring the payment of a fee.
2 (2) The court shall send a copy of the assessment order
3 to the prisoner, the parties to the action and prison having
4 custody of the prisoner. The court may also direct upon
5 condition of maintaining the action that the prisoner make a
6 written request to the prison officials to deduct payments
7 required by the court.
8 (3) The court may modify the assessment order for cause.
9 (c) Payment of filing fees.--Following payment of an initial
10 partial filing fee, the prisoner shall make monthly payments of
11 20% of the preceding month's income credited to the prisoner's
12 account. The prison having custody of the prisoner shall deduct
13 payments from the prisoner's account when the prisoner's account
14 balance exceeds $10 until the filing fees are paid in full. The
15 prison shall forward to the prothonotary the deducted payments
16 upon deduction, on a monthly basis, or upon complete payment of
17 the full filing fee if the court so directs. The Department of
18 Corrections and county prison systems shall develop written
19 guidelines regarding the priority of payment, which shall be
20 consistent with law.
21 (d) Implementation of filing fee assessments.--
22 (1) A prisoner shall not be prohibited from filing
23 prison conditions litigation because the prisoner has no
24 assets or other means to pay the filing fee. This paragraph
25 shall not prevent the court from dismissing or otherwise
26 disposing of prison conditions litigation pursuant to this
27 chapter or any other provision of law.
28 (2) No sooner than 60 days after notice of the denial in
29 forma pauperis status or the assessment of partial filing
30 fees, the prothonotary shall enter a judgment of non pros in
19970S0640B1578 - 11 -
1 the action or strike the appeal if the fees remain unpaid.
2 The action or appeal may be reinstated by the court for good
3 cause shown.
4 (e) Dismissal of litigation.--Notwithstanding any filing fee
5 which has been paid, the court shall dismiss prison conditions
6 litigation at any time, including prior to service on the
7 defendant, if the court determines any of the following:
8 (1) The allegation of indigency is untrue.
9 (2) The prison conditions litigation is frivolous or
10 malicious or fails to state a claim upon which relief may be
11 granted or the defendant is entitled to assert a valid
12 affirmative defense, including immunity, which, if asserted,
13 would preclude the relief.
14 The court may reinstate the prison conditions litigation where
15 the dismissal is based upon an untrue allegation of indigency
16 and the prisoner establishes to the satisfaction of the court
17 that the untrue information was not known to the prisoner.
18 (f) Abusive litigation.--If the prisoner has previously
19 filed prison conditions litigation and:
20 (1) three or more of these prior civil actions have been
21 dismissed pursuant to subsection (e)(2); or
22 (2) the prisoner has previously filed prison conditions
23 litigation against a person named as a defendant in the
24 instant action, or a person serving in the same official
25 capacity as a named defendant, and a court made a finding
26 that the prior action was filed in bad faith or that the
27 prisoner knowingly presented false evidence or testimony at a
28 hearing or trial;
29 the court may dismiss the action. The court shall not, however,
30 dismiss a request for preliminary injunctive relief or a
19970S0640B1578 - 12 -
1 temporary restraining order which makes a credible allegation
2 that the prisoner is in imminent danger of serious bodily
3 injury.
4 § 6603. Limitations on remedies.
5 (a) Limitations on remedies for Federal claims.--Prison
6 conditions litigation filed in or remanded to a court of this
7 Commonwealth alleging in whole or in part a violation of Federal
8 law shall be subject to any limitations on remedies established
9 by Federal law or Federal courts with respect to the Federal
10 claims.
11 (b) Limitations on remedies under Pennsylvania law.--Prison
12 conditions litigation arising in whole or in part due to an
13 allegation of a violation of Pennsylvania law shall be subject
14 to the limitations set forth in this act with respect to those
15 claims arising under Pennsylvania law.
16 (c) Special masters.--In prison conditions litigation
17 arising in whole or in part under Pennsylvania law, the court
18 shall not appoint a person to assist the court or delegate any
19 judicial function, including fact-finding, reporting or
20 monitoring, unless the appointment or delegation is specifically
21 authorized under Pennsylvania court rules. Any court order
22 appointing a special master shall state the specific duties
23 delegated to the special master. Any fact-finding by the special
24 master shall be based upon the record.
25 § 6604. Prospective relief.
26 (a) General rule.--Prospective relief in prison conditions
27 litigation shall extend no further than necessary to correct the
28 violation of Pennsylvania law. The court shall not grant or
29 approve prospective relief unless the relief is narrowly drawn,
30 extends no further than necessary and is the least intrusive
19970S0640B1578 - 13 -
1 means necessary to correct the violation of Pennsylvania law.
2 The court shall give substantial weight to any adverse impact on
3 public safety, prison operations or the operation of the
4 criminal justice system.
5 (b) Conformity.--The court shall not order any prospective
6 relief that requires or permits a government official to exceed
7 authority under, or otherwise violate, Pennsylvania law or the
8 law of a political subdivision unless the relief meets all of
9 the following:
10 (1) Is required by Pennsylvania law.
11 (2) Is necessary to correct the violation.
12 (3) Is the only relief which will correct the violation.
13 (c) Limitation.--Nothing in this section shall be construed
14 to authorize the court to order the construction of prisons or
15 to repeal or detract from otherwise applicable limitations on
16 the remedial powers of the courts.
17 (d) Private settlement agreements.--The provisions of this
18 section shall not apply to private settlement agreements.
19 § 6605. Types of prospective relief.
20 (a) Preliminary injunctive relief.--In prison conditions
21 litigation, the court may, to the extent authorized by law,
22 enter a temporary restraining order or preliminary injunction. A
23 preliminary injunction shall automatically expire 90 days after
24 its entry unless the court makes the findings required under
25 section 6604 (relating to prospective relief) for the entry of
26 prospective relief and makes the order final before the
27 expiration of the 90-day period.
28 (b) Prisoner release orders.--The court shall enter a
29 prisoner release order only if it finds by clear and convincing
30 evidence that crowding is the primary cause of the violation.
19970S0640B1578 - 14 -
1 The government party with jurisdiction over the prison subject
2 to the prisoner release order or the prosecution or custody of
3 persons who may be released from prison as a result of a
4 prisoner release order shall have standing to intervene in any
5 related proceeding and to oppose the imposition or continuation
6 of the order and to seek termination of the order. No prisoner
7 release order shall be entered unless:
8 (1) a court previously entered an order for less
9 intrusive relief which has failed to remedy the violation
10 sought to be remedied. Such order may include a prisoner
11 release order;
12 (2) the defendant has had a reasonable amount of time to
13 comply with the previous court order; and
14 (3) no other relief will remedy the violation.
15 § 6606. Termination or modification of prospective relief.
16 (a) General rule.--In prison conditions litigation in which
17 prospective relief is or has been ordered, the relief shall be
18 terminable upon the motion of a party or intervener two years
19 after the date the court granted or approved the prospective
20 relief or one year after the date the court entered an order
21 denying termination of prospective relief under this subsection.
22 (b) Early termination.--Nothing in this section shall
23 prevent the parties from agreeing to terminate or modify relief
24 before the relief is terminated under subsection (a).
25 (c) Immediate termination.--In prison conditions litigation,
26 a party or intervener shall be entitled to the immediate
27 termination of prospective relief if the relief was approved or
28 granted in the absence of a finding on the record by the court
29 that the relief is narrowly drawn, extends no further than
30 necessary and is the least intrusive means necessary to correct
19970S0640B1578 - 15 -
1 the violation of Pennsylvania law.
2 (d) Limitation.--Prospective relief shall not terminate if
3 the court makes written findings based on the record that
4 prospective relief remains necessary to correct a current and
5 ongoing violation of Pennsylvania law previously determined by
6 the court to exist, extends no further than necessary and is the
7 least intrusive means necessary to correct that violation of
8 Pennsylvania law.
9 (e) Other termination or modification.--Nothing in this
10 section shall prevent a party or intervener from seeking
11 modification or termination to the extent otherwise legally
12 permissible.
13 § 6607. Time limits on settlements.
14 In prison conditions litigation, a government party,
15 including an elected official who was not in office at the time
16 of the settlement agreement EXECUTION OF THE CONSENT DECREE, may <--
17 petition the court to modify or vacate the terms of the consent
18 decree previously entered into. The court shall have the power
19 and authority to void or modify the consent decree at any time
20 upon a showing that, whether in whole or in part, it violates
21 the provisions of this act or for other cause.
22 § 6608. Payment of damage award or settlement.
23 Monetary damages awarded to a prisoner in connection with
24 prison conditions litigation or paid in settlement of prison
25 conditions litigation which is payable from funds appropriated
26 by the General Assembly or by a political subdivision or an
27 insurance policy purchased by the Commonwealth or political
28 subdivision shall first be used to satisfy any outstanding court
29 orders requiring the prisoner to pay restitution, costs, bail,
30 judgments, fines, fees, sanctions or other court-imposed amounts
19970S0640B1578 - 16 -
1 in connection with a criminal prosecution or sentence. Upon
2 receipt of a copy of an outstanding court order, the government
3 party or person designated by the government party shall deduct
4 the full amount owed from the remaining moneys and arrange to
5 pay it directly to the person or entity owed in accordance with
6 Pennsylvania law. Where the amount of outstanding court orders
7 exceeds the monetary damage award or settlement, the government
8 party shall notify the parties owed of the intended distribution
9 of the amounts. Any person or entity owed who objects to the
10 proposed distribution may seek a court order compelling a
11 different distribution. Any remainder of a monetary damage award
12 shall be used to satisfy any amount owed to a government party,
13 including a judgment or any other costs and fees assessed
14 against or imposed upon the prisoner, including, but not limited
15 to, costs for medical services, incarceration and destruction of
16 property. The procedures for such assessment shall be set forth
17 by the prison in written policy and procedure. Notice that all
18 or part of a monetary damage award has been expended pursuant to
19 this section shall be provided to the prisoner by certified mail
20 or personal service. The fact that a prisoner's monetary damage
21 award may be subject to this section may not be taken into
22 consideration in calculating the amount of any monetary damage
23 award.
24 SECTION 5 6. SECTIONS 8124(B)(1)(IX) AND 9732 OF TITLE 42 <--
25 ARE AMENDED TO READ:
26 § 8124. EXEMPTION OF PARTICULAR PROPERTY.
27 * * *
28 (B) RETIREMENT FUNDS AND ACCOUNTS.--
29 (1) EXCEPT AS PROVIDED IN PARAGRAPH (2), THE FOLLOWING
30 MONEY OR OTHER PROPERTY OF THE JUDGMENT DEBTOR SHALL BE
19970S0640B1578 - 17 -
1 EXEMPT FROM ATTACHMENT OR EXECUTION ON A JUDGMENT:
2 * * *
3 (IX) ANY RETIREMENT OR ANNUITY FUND PROVIDED FOR
4 UNDER SECTION 401(A), 403(A) AND (B), 408 OR 409 OF THE
5 INTERNAL REVENUE CODE OF 1986 (PUBLIC LAW 99-514, 26
6 U.S.C. § 401(A), 403(A) AND (B), 408 OR 409), THE
7 APPRECIATION THEREON, THE INCOME THEREFROM [AND], THE
8 BENEFITS OR ANNUITY PAYABLE THEREUNDER AND TRANSFERS AND
9 ROLLOVERS BETWEEN SUCH FUNDS. THIS SUBPARAGRAPH SHALL NOT
10 APPLY TO:
11 (A) AMOUNTS CONTRIBUTED BY THE DEBTOR TO THE
12 RETIREMENT OR ANNUITY FUND WITHIN ONE YEAR BEFORE THE
13 DEBTOR FILED FOR BANKRUPTCY. THIS SHALL NOT INCLUDE
14 AMOUNTS DIRECTLY ROLLED OVER FROM OTHER FUNDS WHICH
15 ARE EXEMPT FROM ATTACHMENT UNDER THIS SUBPARAGRAPH.
16 (B) AMOUNTS CONTRIBUTED BY THE DEBTOR TO THE
17 RETIREMENT OR ANNUITY FUND IN EXCESS OF $15,000
18 WITHIN A ONE-YEAR PERIOD. THIS SHALL NOT INCLUDE
19 AMOUNTS DIRECTLY ROLLED OVER FROM OTHER FUNDS WHICH
20 ARE EXEMPT FROM ATTACHMENT UNDER THIS SUBPARAGRAPH.
21 (C) AMOUNTS DEEMED TO BE FRAUDULENT CONVEYANCES.
22 * * *
23 § 9732. CONTENTS OF PRESENTENCE REPORT.
24 THE PRESENTENCE REPORT SHALL INCLUDE A SUMMARY OF THE
25 CIRCUMSTANCES ATTENDING THE COMMISSION OF THE CRIME, THE HISTORY
26 OF DELINQUENCY OR CRIMINALITY, PHYSICAL AND MENTAL CONDITION,
27 FAMILY SITUATION AND BACKGROUND, ECONOMIC STATUS, EDUCATION,
28 OCCUPATION AND PERSONAL HABITS OF THE DEFENDANT, ANY HISTORY OF
29 DRUG OR ALCOHOL ABUSE OR ADDICTION, AND ANY OTHER MATTERS THAT
30 THE PERSON PREPARING THE REPORT DEEMS RELEVANT OR THAT THE COURT
19970S0640B1578 - 18 -
1 DIRECTS BE INCLUDED.
2 Section 2 6 7. This act shall apply to cases pending, or <--
3 prospective relief that remains in effect, on or after the
4 effective date of this act.
5 Section 3 7 8. This act shall take effect in 60 days. <--
B20L42JRW/19970S0640B1578 - 19 -